Vishnu vs The State of Maharashtra

Sadhana S. Jadhav, J—Heard Adv. Mr. A.N. Nagargoje appearing for the revision applicant, and the learned APP Mr. S.G. Nandedkar appearing for the respondent -State.

The applicant herein is convicted for the offence punishable under Section 376 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 1000/-, in default of payment of fine, to undergo further rigorous imprisonment for one month, by the Assistant Sessions Judge, Beed, in Sessions Case No. 75/2009, vide judgment and order dated 23rd August 2010. Being aggrieved by the said judgment and order, the applicant had preferred Criminal Appeal No. 51/2010 before the Court of Sessions at Beed. The learned Additional Sessions Judge, Beed, vide judgment and order dated 22nd February 2012, was pleased to dismiss the appeal. Hence, this Revision Application.

Such of the facts necessary for the decision of this revision are as follows :

On 27-4-2009, Ms. X (Prosecutrix) lodged a report at Neknoor Police Station, alleging therein that she is 18 years old. That, three days prior to 27-4-2009, she had been to Chakarwadi along with her brother Shrawan, sister Sumitra w/o. Vilas Jadhav. They had stayed at the house of her elder sister Sunita at Khandala. On 26th April 2009, at about 4.00 p.m., her elder brother-in-law i.e. husband of her elder sister (present applicant) had asked her to accompany him to Nagoba temple. The prosecutrix accompanied the applicant -accused to Nagoba temple voluntarily. Thereafter, they had proceeded to another temple. On the way, he had taken her to an isolated place. At that juncture, it is alleged that the present applicant had made sexual advances against the prosecutrix. He had ravished her against her will. He had also assaulted her. She had fallen in partial unconscious condition. Thereafter, she was abandoned at the same spot by the present applicant. After some time, sister-in-law of the present applicant, namely, Rekha and applicant''s daughter, namely, Anita came to the spot. Upon seeing condition of the prosecutrix, they had taken her home. The prosecutrix reported about the incident to her sister and brother. Thereafter, they had visited the house of the maternal sister Mahananda. The victim was taken to a private hospital. She was treated for injuries sustained by her. Thereafter, she had been to the Police Station and lodged the report. On the basis of her report, Crime No. 46/2009 was registered against the present applicant, for offence punishable under Sections 376, 323 and 506 of the Indian Penal Code. The accused -applicant was arrested. After completion of investigation, charge sheet was filed on 22nd July 2009.

The case was registered as Sessions Case No. 75/2009. Charge was framed against the accused. It is pertinent to note, that sometime in March 2010, the prosecutrix had died. The prosecution examined as many as eight witnesses to bring home the guilt of the accused.

PW 1 Sumitra happens to be the sister of the prosecutrix. She has deposed before the court, that on the day of the incident, she along with the prosecutrix and her brother had been to the house of the present applicant. On the day of the incident, at night, her sister i.e. the prosecutrix had disclosed to PW 1 Sumitra, that she had been ravished by the present applicant. PW 1 Sumitra had taken her in a jeep at village Sultanpur at the house of her cousin sister. The prosecutrix was given medical treatment. On the next day, they had been to the Police Station. Statement of the prosecutrix was recorded. It is pertinent to note, that PW 1 has not deposed before the court, the contents of the allegations levelled by the prosecutrix at the time of lodging the First Information Report.

PW 2 Mahadeo Jaibhaye has acted as a Panch.

PW 3 Savitrabai Barde happens to be the neighbour of the accused -applicant. She has deposed before the court, that on the day of the incident, when she was returning home, she had noticed one girl lying near the stream-let. When she reached near the girl, accused was present by the side of the girl. She learnt that the said girl was sister-in-law of the accused. She had requested the accused to take the girl at home. At that juncture, the girl had informed PW 3 Savitrabai, that the accused had ravished her. She apprehended harm at the hands of the accused. PW 3 Savitrabai had sent the sister-in-law of the accused, namely, Rekha, and his daughter to bring the girl from the spot. Evidence of PW 3 Savitrabai is full of omissions and contradictions. In the cross examination, the witness has admitted that she had seen the girl whenever she arrived at the house of the accused and, therefore, identified her as sister-in-law of the accused.

PW 4 Ashok Chate, Police Head Constable was attached to Neknoor Police Station. He had reduced into writing the report lodged by the prosecutrix. At this stage, it is pertinent to note that PW 4 Ashok Chate i.e. scribe of the report has also not deposed before the court about the contents of the FIR or the narration made before him by the prosecutrix.

PW 5 Dr. Hanumant Ghodke had examined the prosecutrix.

PW 7 Balbhim Nalawade is the Police Sub-Inspector who was attached to Neknoor Police Station. It appears from his deposition, that he was present in the Police Station when the allegations were narrated by the prosecutrix and he has proved the contents of the FIR which is at Exhibit 34.

PW 8 Ramling Abhang, Police Constable, had carried the seized Muddemal for chemical analysis.

In the present case, it would be a matter of record, that the prosecutrix who is victim of the case, was not available for deposing before the court. The conviction, prima facie, is recorded on the basis of the statement of the prosecutrix which was reduced into writing under Section 154 of the Code of Criminal Procedure, 1973.

The prosecutrix had expired prior to the commencement of the trial. The prosecution has examined the sister of the victim who had accompanied to the Police Station at the time of lodging of the report. However, the witness has not deposed about the narration of facts made by the prosecutrix to the Police Officer and has only disclosed the incident as narrated to her. The FIR has been exhibited as proved by the Investigating Officer. It is settled position of law, that a FIR is not a substantive evidence. It is only piece of corroborative evidence, and that, the complainant can be confronted with the said document only for the purpose of seeking corroboration to the substantive evidence and for the purpose of proving omissions and contradictions.

The Hon''ble Apex Court, in the case of Tahsildar Singh and Another Vs. The State of Uttar Pradesh, AIR 1959 SC 1012 : (1959) CriLJ 1231 : (1959) 2 SCR 875 Supp , has held as follows :-

" The object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under Section 145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial p4resumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e. the interest of the accused. "

It is further observed by the Hon''ble Apex Court, thus :

"Section 162 of the Code of 1872 made it clear that except for a dying declaration and matters coming within the provisions of Section 27 of the Indian Evidence Act of 1872, no statement of any person made to a police officer in the course of investigation, if reduced into writing, could be used as evidence against the accused. There was no restriction as to the extent of the right of an accused to cross-examine a prosecution witness concerning his statement to the police. Section 162 of the Code of 1898 prohibited the use of a statement reduced into writing, as evidence except any statement falling within the provisions of Section 32 of the Indian Evidence Act, 1872. The proviso to this section, however, expressly stated that in spite of the prohibition in the main provision, the accused could use such a statement to impeach the credit of the witnesses in the manner provided in the Indian Evidence Act of 1872. It will be seen therefore that until 1898 there was no restriction imposed upon the accused as to the extent of his right of cross-examination. "

The statement of the prosecutrix (since deceased) which was reduced into writing in the proforma under Section 154 of the Code of Criminal Procedure, 1973, is not a substantive evidence. In the case of Ram Swaroop and Others Vs. State of Rajasthan, (2004) 13 SCC 134 : (2004) 2 UJ 916 , Hon''ble Apex Court has observed thus :

"It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. "

The statement under Section 154 of the Code of Criminal Procedure, 1973, is only to set the law into motion. In the present case, supplementary statement was not recorded. It is further pertinent to note that the statement of the prosecutrix was also not recorded under Section 164 of the Cr.P.C. Statement under Section 164 of the Cr.P.C. would be in the nature of confession and, therefore, same could have been relied upon in the absence of the prosecutrix.

Section 145 of the Indian Evidence Act casts a right in favour of the accused to confront the witness / complainant with his / her previous statement for a limited purpose i.e. for establishing a contradiction in his / her evidence or for the purpose of impeaching the credit of the witness. An exception is carved out only in respect of Section 32 of the Indian Evidence Act where the statement of the deceased can be relied upon for the purpose of convicting the accused without there being any substantive evidence.

This court is of the opinion that no conviction can be recorded in the absence of substantive evidence. The applicant herein was in jail from 27-4-2009 to 19-8-2009 and from 2nd March 2010 till today. The learned Counsel for the applicant submits that the applicant has almost undergone five years of substantive sentence.

The learned Additional Public Prosecutor submits that the evidence of PW 1 Sumitra would clearly establish that the present applicant had committed the alleged offence. The prosecution witness No. 1 Sumitra was the first person before whom the prosecutrix had narrated the incident and the applicant herein can be convicted on the basis of the evidence of PW 1 Sumitra, PW 3 Savitrabai and PW 7 Balbhim. However, this court has observed that a conviction cannot be recorded in the absence of substantive evidence and hence, such statement does not hold good ground.

The learned Counsel for the applicant fairly submits that morally speaking, even if it is considered that the applicant has committed the said offence, it is a matter of record, that he has undergone about five years of sentence. This submission also need not be considered since the court is only concerned with the substantive evidence recorded before the court and cannot consider the moral aspect of the matter. Once it is held that the conviction cannot be recorded in the absence of substantive evidence of the prosecutrix, who could be the only person to prove the act of the accused, the Revision Application deserves to be allowed.

In the result, the Revision Application is allowed.

The judgment and order passed by the Assistant Sessions Judge, Beed, dated 23rd August 2010, in Sessions Case No. 75/2009, upheld by the appellate court i.e. Additional Sessions Judge, Beed, dated 22nd February 2012, in Criminal Appeal No. 51/2010, is hereby quashed and set aside. The revision applicant be released forthwith, if not required in any other offence. Amount of fine, if deposited, shall be refunded to the revision applicant.

Rule made absolute in the above terms.